Land and Environment Court - Minority Report


PART 2 - KEY RECOMMENDATIONS SUPPORTED BY THE ASSOCIATIONS


1. Use of panels in major matters (Recommendations 17, 27)

The Working Party has made a number of recommendations in relation to major matters as follows:

Recommendation 17
Where appropriate, and subject to the availability of resources, major matters should be decided by panels comprised of commissioners with relevant expertise.

Recommendation 27
“Major matters” identified as those which are not minor matters, should be dealt with by formal hearings unless the parties reach a settlement by way of alternative dispute resolution facilitated by the Court (that is, preliminary conferences and mediation).


Comment

As an ever increasing number of appeals being considered by the Court are complex and cover a range of different issues requiring specific expertise and knowledge on the part of those hearing the appeal, I am pleased that the Working Party generally agreed with the views of the Associations on this issue. Notwithstanding, there is a need for Local Government representation on these panels. This would allow a greater degree of transparency and would be positive in a political sense. Where a panel is used during a hearing, both Judges and Commissioners should be represented so as to give any decision credibility. The Judges and Commissioners should also have experience in non-metropolitan planning issues.

However, I am concerned that the use of panels in major matters will be “where appropriate, and subject to the availability of resources” and consequently, remain at the discretion of the Court. I would have thought that the recommendations of the Working Party for a streamlined process in relation to minor matters would free up some of the resources of the Court so it could then focus on the major development proposals with high levels of public interest. At the end of the day, it appears to me that there will be no substantial change in the way the Court deals with major matters and the process of formal hearings that are so familiar will prevail. Recommendation No. 27 above, confirms this view.

The submission made by the City of Sydney to the review advocates legislative change to enable the creation of a Local Appeals Panel (LAP) by each consent authority. It is proposed that appeals from decisions on minor development (being development less than $10 million in value) would be made to this panel on the same grounds of review as the Court. While I support the concept of a LAP as it has the potential to reduce the workload of the Court and the costs associated with these appeals, I do not agree they should be made mandatory for councils. Further to this, the majority of councils in NSW would agree with me in saying that a development with a value of $10 million can hardly be regarded as minor development. Notwithstanding, this concept for the City of Sydney should be explored.



2. Streamlined process for minor matters (Recommendations 25, 26)

The Working Party has made a number of recommendations in relation to a streamlined process for minor matters as follows:

Recommendation 25
Where proposed development the subject of an appeal would have little or no impact beyond neighbouring properties and there is no wider public interest involved, the appeal should be identified and dealt with as a “minor matter”. In determining whether an appeal is a minor matter, the estimated value of the development should be used as a guide. As a starting point, where the estimated value of the proposed development is less than half of the median house price in the local government area, the appeal should be regarded as a minor matter. Where a party submits that the appeal is not a minor matter, a Judge should determine the question.

Recommendation 26
Conferences under section 34 of the Land and Environment Court Act 1979 should be compulsory for minor matters. The commissioner presiding over such a conference should have the power to make a binding decision.

The conference should be held on the site of the proposed development unless the presiding commissioner considers that another venue would be more appropriate. Conferences should be conducted with a minimum of formality. Generally, there would be no transcript of proceedings and no cross-examination. However, it would be open to a commissioner to require the parties’ experts to confer and report on specific issues.

Appeals from compulsory conferences should be limited to questions of law.


Comment

I generally support a streamlined process for minor matters as it has the potential to reduce cost and expedite the time taken to determine these development proposals and generally be an informal process. The process will have the effect of freeing up some of the Court’s resources and in doing so, allow the Court to focus on major matters where there is a high level of public interest in the outcome.

I agree with the Working Party’s view that minor matters can be considered as those with a private, as opposed to a public, interest in the outcome, for example, development that only impacts on immediate neighbours. However, I am concerned about the way in which a development proposal will be determined as a minor matter. While I am of the view that the estimated value of development can be an indicator of the scale of a proposal, it is not by any means an indicator of complexity, and should not be solely relied upon. Nor can the figure address controversial development proposals, such as those involving an extension to the hours of operation of a hotel or a change of use of premises, which may not have high development costs but where there is a high level of public interest.

The proposal for compulsory conferences in respect of minor matters builds upon the current section 34 preliminary conferences available to parties under the Land and Environment Court Act 1979. The use of mandatory conferences raises the issue of delegations of council representatives. Participation in conferences facilitated by the Court will require that authorised representatives have the powers to negotiate and settle matters to effectively participate, otherwise they will fail. Recommendation 32 of the Working Party’s report encourages councils to make appropriate delegations to council staff (refer point 7, below).



3. Delegation to council staff (Recommendation 7)

The Working Party has recommended that councils should consider delegating the power to determine applications for development:

• Which complies with all the applicable controls and policies; and
• Where no objections have been received, or any objections can be overcome by the imposition of appropriate conditions of consent.